Exhibit
10.4


 


REVOLVING
NOTE


(Cash Secured
Advances)


 


	
  $10,000,000

  	
   

  	
  Minneapolis, MN

  
	
   

  	
   

  	
  December 22, 2009

  



 


FOR VALUE RECEIVED, the
undersigned, OVERSTOCK.COM, INC., a Delaware corporation (“Borrower”),
hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a
national banking association (“Bank”), on the Facility Termination Date
under that certain Financing Agreement bearing even date herewith (as the same
may be amended, supplemented or restated from time to time, the “Financing
Agreement”), by and between Borrower and Bank, in lawful money of the
United States of America and in immediately available funds, the principal sum
of TEN MILLION AND NO/100THS DOLLARS ($10,000,000) or, if less, the aggregate
unpaid principal amount of all Cash Secured Advances made by Bank to Borrower
under the Financing Agreement, together with interest from the date hereof
until this Note is fully paid on the principal amount hereunder remaining
unpaid from time to time, computed in the manner, and at the rates from time to
time in effect, under the Financing Agreement. 
The principal hereof and interest accruing thereon shall be due and
payable as provided in the Financing Agreement.


 


This Note is one of the “Notes”
referred to in the Financing Agreement and is entitled to the benefits and
security, and is subject to the terms and conditions, of the Financing
Agreement, including, without limitation, acceleration upon the terms provided
therein and in the other Loan Documents. 
All capitalized terms used herein which are defined in the Financing
Agreement and not otherwise defined herein shall have the meanings given in the
Financing Agreement.


 


This Note is subject to
voluntary and mandatory prepayment, in full or in part, in accordance with, and
subject to the terms of, the Financing Agreement.


 


All
payments of principal and interest under this Note shall be made in lawful
money of the United States of America in immediately available funds at the
office of Bank, at 800 Nicollet Mall, Minneapolis, Minnesota 55402, or at such
other place as may be designated by Bank to Borrower in writing.


 


Upon the occurrence of an
Event of Default, and after the lapse of any applicable period of cure, the
outstanding principal balance hereunder, together with any accrued but unpaid interest
and together with all of the other Obligations, may be accelerated and become
immediately due and payable at the option of Bank and without demand or notice
of every kind (which are hereby expressly waived by Borrower).


 


Borrower hereby agrees to pay
all costs of collection, including Attorneys’ Fees, all as provided in the
Financing Agreement, if this Note is not paid when due, whether or not legal
proceedings are commenced.


 


Presentment or other demand
for payment, notice of dishonor and protest are expressly waived.


 


THIS NOTE HAS BEEN DELIVERED
AND ACCEPTED AT AND SHALL BE DEEMED TO HAVE BEEN MADE AT MINNEAPOLIS,
MINNESOTA.  THIS NOTE SHALL BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA (WITHOUT REFERENCE TO MINNESOTA’S
CONFLICTS OF LAW PRINCIPLES).


 

















 


AS A SPECIFICALLY BARGAINED
INDUCEMENT FOR BANK TO ENTER INTO THE FINANCING AGREEMENT AND EXTEND CREDIT TO
BORROWER, BORROWER AND BANK AGREE THAT ANY ACTION, SUIT OR PROCEEDING IN
RESPECT OF OR ARISING OUT OF THIS NOTE, ITS VALIDITY OR PERFORMANCE, AND
WITHOUT LIMITATION ON THE ABILITY OF BANK, OR ITS SUCCESSORS AND ASSIGNS, TO
EXERCISE ALL RIGHTS AS TO THE LOAN COLLATERAL AND TO INITIATE AND PROSECUTE IN
ANY APPLICABLE JURISDICTION ACTIONS RELATED TO REPAYMENT OF THE OBLIGATIONS,
SHALL BE INITIATED AND PROSECUTED AS TO BORROWER AND BANK AND THEIR SUCCESSORS
AND ASSIGNS AT MINNEAPOLIS, MINNESOTA. 
BANK AND BORROWER EACH CONSENT TO AND SUBMIT TO THE EXERCISE OF
JURISDICTION OVER ITS PERSON BY ANY COURT SITUATED AT MINNEAPOLIS, MINNESOTA HAVING
JURISDICTION OVER THE SUBJECT MATTER, AND CONSENT THAT ALL SERVICE OF PROCESS
BE MADE BY CERTIFIED MAIL DIRECTED TO BORROWER OR BANK AT THEIR RESPECTIVE
ADDRESSES SET FORTH IN SECTION 15.9 OF THE FINANCING AGREEMENT
(WITH SUCH SERVICE OF PROCESS DEEMED COMPLETED THREE (3) DAYS AFTER BEING
SO MAILED) OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE STATE OF
MINNESOTA.  BORROWER WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.


 


AS A SPECIFICALLY BARGAINED
INDUCEMENT FOR BANK TO ENTER INTO THE FINANCING AGREEMENT AND EXTEND CREDIT TO
BORROWER, BORROWER AND BANK EACH WAIVE TRIAL BY JURY WITH RESPECT TO ANY
ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS NOTE OR
THE RELATIONSHIP BETWEEN BANK AND BORROWER.


 


[Remainder of
page intentionally left blank;


signature page follows]


 


2

















 


IN WITNESS WHEREOF, Borrower
has caused this Revolving Note (Cash Secured Advances) to be executed and
delivered by its duly authorized officer as of the day and year and at the
place set forth above.


 


	
   

  	
  OVERSTOCK.COM,
  INC.,

  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan E. Johnson III

  
	
   

  	
  Name:

  	
  Jonathan
  E. Johnson III

  
	
   

  	
  Title:

  	
  President

  



 


[Signature page to Revolving Note (Cash
Secured Advances)]